Category: International & Comparative Law


Further Studies of Bilateral Free Trade Agreements Needed

As Larry Helfer writes, the United States has “regime shifted” in international trade, moving from the multilateral, global negotiations in the WTO, where liberalizing trade has stalled, to bilateral or regional agreements. These agreements have received insufficient attention.

In a recent paper written as part of a symposium in honor of Margaret Jane Radin, I offer one example of how we might approach such studies. In the paper, “Exporting DMCA Lockouts,” I compare anti-circumvention provisions in all of the post-DMCA FTAs. To do this, I ran dozens of blacklines, comparing those provisions in various FTAs with each other. This comparative approach revealed a significant amount about the negotiating position of the United States, viz., what aspects of these provisions on which the U.S. would be flexible. Such an approach provides information not only for other potential FTA counterparties, but also demonstrates the extent of our commitment to largely not budge from very strong anti-circumvention rules.

The amount of material for future scholarship in such an approach is quite large. Many aspects of human endeavors are affected by these FTAs–which bind not only our trading partners, but ourselves. Thus, there is a large need for academic inquiry into what these FTAs require.

Here’s my abstract for the paper, which can be downloaded here.

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Pay the Poor to Be Citizens

money.jpgA colleague suggests that there might be a relationship between a series of seemingly random observations:

  • A sudanese cell-phone billionaire announced a prize for good governance, to be awarded to current African leaders when they step down from office. According to news reports, “each leader awarded the prize will receive $5 million spread over 10 years after leaving office. If still alive when the initial prize is exhausted, prize-winners will receive another $200,000 annually until they die.”
  • The Arizona Voter Reward Act, which would establish a $1,000,000 prize whose proceeds would go to a randomly-selected voter, is on November 7th’s ballot. The state’s Chamber of Commerce is opposed: Harvard’s Info/Law project is more open minded. Most think the law would be plainly illegal preempted by federal law even if passed.
  • Jury pay rates are embarassingly low, if meant to be compensatory. Some jurisdictions are funding pilot projects to study if pay raises will increase compliance with jury service.

Here is the question for debate: is there any meaningful way to distinguish the African prize (which many legal commentators no doubt would celebrate) from the voting and jury service problems? Or, more provocatively, are the powerful the only people who we will allow to make money from being good citizens?

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A Review of UN Secretary Generals Past


I have copied here the Wikipedia entry reviewing the history of the UN Secretary General post.

The Security Council has just selected South Korean Ban Ki-Moon for the post of UN Secretary General–the leader of both the free and unfree world.

As the chart shows, the post has moved fitfully between continents.

Early on in the deliberations, many agreed that it was now Asia’s turn. However, U.S. Acting Ambassador John Bolton argued that the job should go to the best qualified candidate regardless of nationality. The United States ultimately agreed to the selection of an Asian SG, albeit one from a historic American ally. One hopes that, when it is North America’s turn, the United States will remember its earlier preference for a wholly merits-based approach. Who knows? The best person for the job then might be an African, a European, or an Asian.


‘See At Least One Subtitled Movie A Month’

See at least one movie with subtitles a month. bfbroke06.jpg

This is Kwame Anthony Appiah’s injunction to the audience at a Fordham conference on global citizenship over this past weekend. Appiah, the dazzling University professor at Princeton, believes in conversations across cultures. Such conversations, he hopes, will help us to understand one another, perhaps even inculcate global feelings.

Some might argue that this might lead us to recognize what we all hold in common. But Appiah believes in difference as well. The conversation might lead us to recognize what divides and differentiates us as well.

Appiah is not a cultural relativist: tolerance, he notes, suggests a view as to what is not to be tolerated.

So here is my question for you: Have you learned something from watching a film with subtitles (and, if so, what film)? Did it reveal commonality or difference?

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Law school killed the video star?

Thanks to all at C.O. for hosting me. I’m getting a late start on my guest stint.

Thanks to differing school years, this summer I had the pleasure of visiting at Keio University School of Law, one of Japan’s new “American-style” post-graduate law schools. They had just graduated their first class; prior to 2004 formal study of law at universities in Japan was through undergraduate law faculties.


As luck would have it, the #1 song on Japan’s version of the Billboard charts at that time was Daite Senorita (Hold Me Senorita) by Tomohisa Yamashita — one in a long line of manufactured J-Pop stars from Japan’s foremost hit factory, Johnny’s Entertainment.

I happened to see the video, and you can too, thanks to YouTube. It’s not all that entertaining, but during the last minute (hint: you don’ t have to watch the whole thing), he and his minions brawl with a similarly suit-clad opposing street gang. Then he goes back to his apartment and studies what appear to be law books. What appears to be the Compendium of Laws (Roppo zensho) by the legal publisher Yuhikaku appears in the foreground (lower right); another law book is in the lower left of the screen.

This raises two not-too-serious questions. First, what an illustration of the competition in Japan between private and legal ordering. (Apologies to West and Milhaupt, The Dark Side of Private Ordering, 67 U. Chi. L. Rev. 41 (2000))! Second, besides All the Kings Men or Krzysztof Kieślowski’s Red, I wonder how often law professors or law students appear in fictional works that are not actually about law school?


The U.N. Human Rights Commissioner Who Cried Wolf

wolf.jpgU.N. Commissioner Louise Arbour said today about Hezbollah, Gazan forces, and Israel that:

Indiscriminate shelling of cities constitutes a foreseeable and unacceptable targeting of civilians. Similarly, the bombardment of sites with alleged military significance, but resulting invariably in the killing of innocent civilians, is unjustifiable. International humanitarian law is clear on the supreme obligation to protect civilians during hostilities. This obligation is also expressed in international criminal law, which defines war crimes and crimes against humanity. International law demands accountability. The scale of the killings in the region, and their predictability, could engage the personal criminal responsibility of those involved, particularly those in a position of command and control.

I am not in any way an expert in the laws of law. These folks are, but they haven’t blogged the story yet. Is the theory that the laws of war require laser guided bombing? And, in any event, did the region really need more asymmetric, empty, blundering threats? (Hezbollah and the Gazan militants are, in domestic parlance, judgment proof as against war crime tribunals).

[Update: Lynn’s comment below suggests I ought to have been less glib and more clear. Isn’t the commissioner’s statement at least very premature, given that the fog of war is still blooming?]


European Court of Justice Strikes EU-US Agreement on PNR Data

The European Court of Justice dealt a blow yesterday to European Union and U.S. policymakers, with two important judgments on privacy and transatlantic relations. Back in 2004, the European Union and the United States signed an agreement guaranteeing the privacy of European airline passenger data when that data was transferred to the U.S. government. In European Parliament v. Council of the European Union and European Parliament v. Commission of the European Communities, the Court of Justice found that the Europeans did not have the power, under their constitutional rules, to enter into the agreement. Luckily for the airlines and the governments, the Court delayed the effect of its decision until September 30, 2006. Until then, European airlines will keep on being able to transfer their passenger data—and keep on being able to fly into American airports–without having to worry about breaking European privacy law. Afterwards, it could get complicated.

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The NSA Phone Call Database: The European Perspective

Had a European government, instead of the Bush administration, created the NSA’s call database, would that government be in violation of European privacy law? I think so, for the reasons I explore below.

Why should anyone care that the outcome would have been so different under European privacy law? One reason for the comparison with Europe is that it enables us to understand better current developments in American law. It is striking how similar American and European data privacy law was in the early 1970s, how different it is today. The first European database privacy statutes of the 1970s drew on the U.S. Privacy Act of 1974. Alan Westin’s Privacy and Freedom, published in 1967, was read widely by both American and European policymakers. There are many reasons for the divergent paths of the two systems. This latest example of difference highlights one set of reasons: the President’s new constitutional powers in fighting terrorism, post-September 11. Congress, the courts, and the public might very well accept that the NSA program is legal, based on the President’s inherent authority as commander-in-chief. In Europe, that would not be possible.

A more pragmatic reason for caring about the different result under European privacy law is that it could undermine transatlantic cooperation in the fight against terrorism. Some European laws forbid the transfer of public security and law enforcement data to countries without adequate privacy protection. This latest revelation just reinforces the European view that U.S. privacy laws are inadequate—and therefore could make European governments reluctant to turn over information on European citizens to the American government in the fight against terrorism.

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Parting words from Justice Scalia

scalia.jpgThe time has come for me to say farewell to the CoOp community — I’ve thoroughly enjoyed my stint as a guest blogger, and hope to visit again sometime soon.

As much of my blogging over the last month has been on the controversy over the use of foreign and international law in U.S. courts (see here and here), I thought it would be appropriate in my “farewell” blog to give Justice Scalia the last word. His diatribes against foreign and international law have inspired various Congressional attempts to legislate against the practice: A Senate bill, for example, would forbid federal judges from citing “any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.” So what does the Justice himself think about his Congressional fan club?

Not much, apparently. The Washington Post reports today that Justice Scalia chastised Congress for sticking its nose where it doesn’t belong. “It’s none of your business. No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decisions.” The pending legislation, Scalia complained, “is like telling us not to use certain principles of logic.” And he concluded, “Let us make our little mistakes just as we let you make yours.”

As surprised as I am to find myself in agreement with him, I say, “Amen, Justice Scalia.” In my view, the jury is still out on whether it’s a “mistake” to rely on foreign and international law in constitutional interpretation — but surely this is something for our judges to decide for themselves. America is blessed with one of the strongest judiciaries in the world, and we can trust them to figure this out on their own. Congress should leave them alone and let them do their jobs.

And on that note, I’ll sign off for now. Many thanks to all those who have debated this and other issues with me over the past month. I have learned much from your comments, and look forward to continuing the dialogue in the future.


Wanna hobnob with George Clooney this weekend?

Then come join the crowds at the Save Darfur Coalition’s “Rally to Stop Genocide” on the National Mall in Washington, D.C., this Sunday, April 30. Other luminaries appearing at the event include Senator Barack Obama, Nobel Peace Prize winner Elie Wiesel, rap impresario Russell Simmons, and Paul Rusesabagina (whose story was depicted in the superb film Hotel Rwanda, which you should rush out and rent tonight if you haven’t seen it yet). The Save Darfur Coalition brings together more than 160 faith-based, human rights, and humanitarian organizations, and the list of speakers at Sunday’s event reflects the incredibly diverse, grass roots nature of this effort. Here’s the blurb from the Coalition’s website:

“The rally is part of the “Million Voices for Darfur” campaign to generate one million postcards for delivery to President Bush, who recently pledged to push for additional UN and NATO help to protect the people of Darfur. We applaud the President’s leadership, but the work is far from done. We are urging President Bush to take steps necessary to end the genocide and build a lasting peace.”

Organizers estimate that around 20,000 people will attend the rally in DC, with smaller rallies to be held in cities around the country. Even if the crowds defy expectations and number in the hundreds of thousands, they will be dwarfed by the figures coming out of Sudan itself: According to the Coalition website, in just three years, 400,000 people have died and nearly 2.5 million have been displaced.

How many political issues out there can unite Barack Obama and Sam Brownback in common cause? Kudos to both Senators, and to the many other politicians, celebrities, and ordinary folk who have put compassion and principle above partisan bickering, in an attempt to shake us all out of our apathy.